I have written extensively in many outlets including Pajamas Media about the outright lawlessness emanating from the Civil Rights Division under Eric Holder’s leadership at the Justice Department. Whether it involves rewriting military voter protections, refusing to sue defendants because of their race, or ignoring the Motor Voter requirements, the rule of law is endangered by this DOJ. The latest example may be the Division’s defense of a lawsuit filed by Shelby County, Alabama, challenging the constitutionality of Section 5 of the Voting Rights Act (VRA).
Section 5 of the Voting Rights Act requires some, but not all, states to get federal government preclearance of any change involving voting or elections prior to implementation. Even the location of polling place, or the hours a voting registration office is open, must be approved in Washington. The Supreme Court nearly overturned the law a few years ago. It said the requirement may be constitutionally defective, but used a strained reading of a separate statute to defer a decision.
A number of cases have already been launched seeking to have the high court rehear the issue and interest groups are poised to launch even more. Even Georgia recently challenged Section 5 as part of an effort to have a law approved to allow Georgia to check the citizenship of voters. Amazingly, Justice objected to the citizenship check in 2009, but hastily retreated in the face of the constitutional challenge.
Desperate to prevent the court from reaching the merits of the Shelby Alabama challenge, the Division is insisting that it needs nine months of discovery before responding to Shelby County’s motion for summary judgment. This request is without merit, and the arguments advanced by Voting Section trial attorneys (and echoed by the civil rights groups who have intervened) are both vacuous and conclusory. As the preeminent attorneys from the Wiley Rein law firm noted in their brief, Shelby County is asserting an exclusively facial challenge to Section 5. And the only evidence relevant to such a claim is the congressional “findings” used to support the reauthorization of the VRA in 2006. The situation on the ground in Shelby County is irrelevant.
The Justice Department, of course, is well aware of this fact. What it is trying to do, however, is drag out the litigation for as long as possible in the hopes that the composition of the federal appellate courts (and especially the Supreme Court) undergoes a further leftward tilt by the time the case reaches one of those tribunals.
They might also be hoping that Justice Scalia’s love of Marlboro Lights catches up to him.
But the real outrage occurred Friday afternoon in a DC federal courtroom. A Voting Section trial attorney told the judge that the court shouldn’t reach the constitutional question because Shelby County could always “bail out” from the VRA by submitting a request to be relieved from the Act’s onerous pre-clearance requirements. This statement was almost certainly untrue, and the attorney surely knew as much.
I would rather be wrong about this than for the Justice Department to misrepresent the law to the court. I am perfectly happy to stand corrected. But I don’t think I am wrong.
Indeed, Shelby County is not eligible for a bailout because — as the Supreme Court reminded the country just two years ago — Section 4(a) of the VRA mandates that a bailout applicant demonstrate (among other things) that no change affecting voting within that jurisdiction has been the subject of an objection by the Justice Department within the last 10 years. The Department of Justice, however, has interposed two separate objections against Shelby County (each involving proposed annexations) within the last two years, the latest of which occurred just two years ago. Moreover, the Department’s own website underscores that this requirement “appl[ies] to all governmental units within the geographical boundaries of the jurisdiction. Thus, if a county is seeking to ‘bailout,’ it must establish each criteria for every city, town, school district, or other entity within its boundaries.” There are no exceptions.
The statements by the Voting Section lawyer at the hearing — no doubt sanctioned by his superiors — reflect an effort by Justice officials to brazenly ignore the statutory text and “rewrite” the VRA in a way that serves their political objectives. One might expect this type of conduct from a left-wing advocacy organization, but not from the Department of Justice.
Unfortunately, this type of lawlessness is consistent with a disturbingly recurring pattern in the Civil Rights Division under the new administration. I am confident that the judge in the Shelby County case won’t fall for these tactics, and it will be interesting to watch the Division try to defend its tactics at the congressional oversight hearings which, based on current trends, are less than five months away.
The rule of law is a precious thing. It binds our country together and preserves a civilized structure that took centuries to create. Those who have sworn an oath to defend the rule of law have a special obligation to uphold it. Let’s hope the federal court sees through what happened last Friday in Washington.
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